Supreme Court of India
MANTRI TECHZONE PVT. LTD.versusFORWARD FOUNDATION AND ORS.
- Citation
- 2019 INSC 315
- Decided
- 5 March 2019
- Disposal
- Disposed off
- Bench
- A K SIKRI
Holding
The Supreme Court held that the NGT had jurisdiction under Sections 14 and 15, the application was filed under Section 15 within the five‑year limitation, and the appeal under Section 22 was confined to a substantial question of law, thereby upholding the Tribunal’s findings and penalties.
Summary
The petitioners alleged that the Karnataka Industrial Area Development Board had allotted ecologically sensitive land for a software technology park, resulting in encroachment of storm‑water drains (Rajakaluves) and damage to the Bellandur lake catchment. The National Green Tribunal (NGT) found violations of wetland and planning regulations, imposed hefty environmental compensation penalties on the project proponents, and directed extensive restoration measures. The appellants challenged the NGT order, arguing that the original application was not maintainable under Section 14, was time‑barred, and that the appeal under Section 22 could not revisit factual findings. The Supreme Court held that the application was correctly filed under Section 15, within the five‑year limitation, and that the appeal was limited to a substantial question of law, not a re‑appreciation of facts. Consequently, the Court upheld the NGT’s jurisdiction, findings and penalties, dismissed the appellants’ appeals, and set aside only the general buffer‑zone direction that did not affect the respondents.
Issues considered
- The maintainability of the original application before the NGT under Section 14 versus Section 15 of the NGT Act and the applicable limitation period.
- Whether the appeal under Section 22 of the NGT Act is permissible for a factual re‑appreciation or limited to a substantial question of law.
- The jurisdiction of the NGT to impose environmental compensation and prescribe buffer zones contrary to state planning regulations.
- The applicability of the doctrine of res judicata or constructive res judicata to the parallel writ petitions before the High Court.
- The validity of the NGT’s directions regarding buffer zones and demolition of constructions within those zones.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Karnataka Industrial Area Development Board Act
- Karnataka Municipal Corporations Act, 1976
- Karnataka Town and Country Planning Act, 1961
- National Green Tribunal Act, 2010s. 14, s. 15, s. 16, s. 18, s. 20, s. 22, s. 33
- Wetlands (Conservation and Management) Rules, 2010 (Karnataka)
Subjects
environmental lawNational Green Tribunaljurisdictionlimitation periodres judicatabuffer zonewetlandsenvironmental compensationstatutory appeal
Judgment
[2019] 4 S.C.R. 995 995
MANTRI TECHZONE PVT. LTD. A
v.
FORWARD FOUNDATION AND ORS.
(Civil Appeal No.5016 of 2016)
MARCH 05, 2019 B
[A.K. SIKRI, S. ABDUL NAZEER AND M.R. SHAH, JJ.]
National Green Tribunal Act, 2010 – s. 14, 15, 16, 18 and 22
– Wetlands (Conservation of Management) Rules, 2010 – Karnataka
Town and Country Planning Act, 1961 – Applicants filed application
C
before National Green Tribunal (NGT) contending that ecologically
sensitive land was allotted by the Karnataka Industrial Area
Development Board (KIADB) to respondents nos.9 & 10 for setting
up of Software Technology Park, Commercial and Residential
Complex, hotel and Multi-level Car Parks – It was further contended
that the Revenue Map in respect of properties referred in the Land D
Lease Agreements had multiple Rajakaluves (Storm Water Drains)
– It was alleged that the said Project was encroaching on two
Rajakaluves – It was also alleged that respondents had obtained
NOC by concealing material facts and commenced construction over
the ecologically sensitive area of the lake catchment area and valley,
E
with utter disregard to the statutory compliances – Tribunal
constituted the committee to inspect the projects in question and
submit the report – Further, Tribunal directed Respondent No.9 to
pay penalty of Rs.117.35 crores and Respondent No. 10 to pay
penalty of Rs. 22.5 crores for environmental and ecological
restoration – In appeal before the Supreme Court, appellants F
contended that original application was not maintainable as it did
not satisfy requirements of s.14(1) and 14(3) of the Act and it was
barred by limitation as it was not filed within six months from date
on which cause of action arose – Held: The Jurisdiction of the
Tribunal is provided u/ss. 14, 15 and 16 of the Act – s.14 provides
G
the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right
relating to environment) is involved – However, such question should
arise out of implementation of the enactments specified in Schedule
I – Also, s.15(1)(c) of the Act is an entire island of power and
jurisdiction r/w. s.20 of the Act – Whenever the environment and H
995
996 SUPREME COURT REPORTS [2019] 4 S.C.R.
A ecology are being compromised and jeopardized, the tribunal can
apply s.20 for taking restorative measures in the interest of the
environment – The NGT Act being a beneficial legislation, the power
bestowed upon the Tribunal would not be read narrowly – An
interpretation which furthers the interests of environment must be
given a broader reading – Further, an interpretation that is in favour
B
of conferring jurisdiction to the Tribunal should be preferred rather
than one taking away jurisdiction – Insofar as limitation is
concerned, the original application filed was not an application u/
s. 14 of the Act, it was a petition u/s. 15 of the Act and thus it could
be filed within 5 years from the date on which the cause for such
C compensation on relief first arose – Also, the findings arrived at by
the Tribunal are not only based on the documents that were available
on record but also on the pleadings that were made by the parties
buttressed by the Committee’s report and the inspection note of the
Expert Members – Therefore, the directions passed and the penalty
imposed by the Tribunal on both project proponents valid and
D
sustainable.
National Green Tribunal Act, 2010 – s.22 – Code of Civil
Procedure, 1908 – s.100 – Held:s. 22 provides for an appeal to the
Supreme Court on the grounds specified in s.100 of the CPC – U/
s.100 CPC, an appeal can be filed only on the ground that the case
E involves a substantial question of law as may be framed by the
Appellate Court – The scope of appeal u/s. 22, therefore, is restricted
to substantial question of law arising from the judgment of the
Tribunal.
National Green Tribunal Act, 2010 – s.22 – Appellants sought
F a factual review through the methodology of re-appreciation of
factual matrix by Supreme Court u/s.22 of the NGT Act – Held: It is
settled that merely because the remedy of appeal is provided against
the decision of the Tribunal on a substantial question of law alone,
that does not ipso facto permit the appellants to agitate their appeal
G to seek re-appreciation of the factual matrix of the entire matter –
The appellants cannot seek to re-argue their entire case to seek
wholesale re-appreciation of evidence and the factual matrix that
has been considered by the Tribunal is ex facie impermissible u/s.
22 – There cannot be fresh appreciation or re-appreciation of facts
and evidence in a statutory appeal under this provision.
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 997
National Green Tribunal Act, 2010 – ss. 14 and 15 – Held: A
s.15 of the Act provides power & jurisdiction, independent of s.14
thereof – Further, s.14(3) juxtaposed with s.15(3) of the Act, are
separate provisions for filing distinct applications before the Tribunal
with distinct periods of limitation, thereby amply demonstrating that
jurisdiction of the Tribunal flows from these Sections (i.e. s. 14 and
B
s.15 of the Act) independently – The limitation provided in s.14 is a
period of 6 months from the date on which the cause of action first
arose and whereas in s.15 it is 5 years – Therefore, the legislative
intent is clear to keep s.14 and s.15 as self-contained jurisdictions.
Dismissing C.A.No.5016 of 2016 and C.A.No.8002-8003
of 2016, the Court C
HELD: 1. The first question raised by the appellants is in
relation to the maintainability of the application before the
Tribunal. The Tribunal has been established under a
constitutional mandate provided in Schedule VII List I Entry 13
of the Constitution of India, to implement the decision taken at D
the United Nations Conferenceon Environment and Development.
The Tribunal is a specialized judicial body for effective and
expeditious disposal of cases relating to environmental protection
and conservation of forests and other natural resources including
enforcement of any legal right relating to environment. The right E
to healthy environment has been construed as a part of the right
to life under Article 21 by way of judicial pronouncements.
Therefore, the Tribunal has special jurisdiction for enforcement
of environmental rights. [Paras 39 and 40] [1025-D-F]
2. The jurisdiction of the Tribunal is provided under F
Sections 14, 15 and 16 of the National Green Tribunal Act, 2010.
Section 14 provides the jurisdiction over all civil cases where a
substantial question relating to environment (including
enforcement of any legal right relating to environment) is involved.
However, such question should arise out of implementation of
the enactments specified in Schedule I. [Para 41] [1025-F-G] G
3. The Tribunal has also jurisdiction under Section 15(1)(a)
of the Act to provide relief and compensation to the victims of
pollution and other environmental damage arising under the
H
998 SUPREME COURT REPORTS [2019] 4 S.C.R.
A enactments specified in Schedule I. Further, under Section
15(1)(b) and 15(1)(c) the Tribunal can provide for restitution of
property damaged and for restitution of the environment for such
area or areas as the Tribunal may think fit. It is noteworthy that
Section 15(1)(b) & (c) have not been made relatable to Schedule
I enactments of the Act. Rightly so, this grants a glimpse into
B
the wide range of powers that the Tribunal has been cloaked with
respect to restoration of the environment. [Para 42] [1025-H;
1026-A-B]
4. Section 15(1)(c) of the Act is an entire island of power
and jurisdiction read with Section 20 of the Act. The principles
C of sustainable development, precautionary principle and polluter
pays, propounded by this Court by way of multiple judicial
pronouncements, have now been embedded as a bedrock of
environmental jurisprudence under the NGT Act. Therefore,
wherever the environment and ecology are being compromised
D and jeopardized, the Tribunal can apply Section 20 for taking
restorative measures in the interest of the environment.
[Para 43] [1026-C-D]
5. The NGT Act being a beneficial legislation, the power
bestowed upon the Tribunal would not be read narrowly. An
E interpretation which furthers the interests of environment must
be given a broader reading. The existence of the Tribunal without
its broad restorative powers under Section 15(1)(c) read with
Section 20 of the Act, would render it ineffective and toothless,
and shall betray the legislative intent in setting up a specialized
Tribunal specifically to address environmental concerns. The
F Tribunal, specially constituted with Judicial Members as well as
with Experts in the field of environment, has a legal obligation to
provide for preventive and restorative measures in the interest
of the environment. [Para 44] [1026-D-F]
6. Section 15 of the Act provides power & jurisdiction,
G independent of Section 14 thereof. Further, Section 14(3)
juxtaposed with Section 15(3) of the Act, are separate provisions
for filing distinct applications before the Tribunal with distinct
periods of limitation, thereby amply demonstrating that
jurisdiction of the Tribunal flows from these Sections (i.e. Sections
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 999
14 and 15 of the Act) independently. The limitation provided in A
Section 14 is a period of 6 months from the date on which the
cause of action first arose and whereas in Section 15 it is 5 years.
Therefore, the legislative intent is clear to keep Section 14 and
15 as self contained jurisdictions. [Para 45] [1026-F-H]
7. Further, Section 18 of the Act recognizes the right to file B
applications each under Sections 14 as well as 15. Therefore, it
cannot be argued that Section 14 provides jurisdiction to the
Tribunal while Section 15 merely supplements the same with
powers. As stated supra. the typical nature of the Tribunal, its
breadth of powers as provided under the statutory provisions of
the Act as well as the Scheduled enactments, cumulatively, leaves C
no manner of doubt that the only tenable interpretation to these
provisions would be to read the provisions broadly in favour of
cloaking the Tribunal with effective authority. An interpretation
that is in favour of conferring jurisdiction should be preferred
rather than one taking away jurisdiction. [Para 46] [1027-A-C] D
8. Section 33 of the Act provides an overriding effect to
the provisions of the Act over anything inconsistent contained
in any other law or in any instrument having effect by virtue of
law other than this Act. This gives the Tribunal overriding powers
over anything inconsistent contained in the KIAD Act, Planning E
Act, Karnataka Municipal Corporations Act, 1976 (“KMC Act”);
and the Revised Master Plan of Bengaluru, 2015 (“RMP”). A
Central legislation enacted under Entry 13 of List I Schedule VII
of the Constitution of India will have the overriding effect over
State legislations. The corollary is that the Tribunal while
providing for restoration of environment in an area, can specify F
buffer zones around specific lakes & water bodies in contradiction
with zoning regulations under these statutes or the RMP.
[Para 47] [1027-C-E]
9. The second question raised by the appellants is that the
petition is barred by time. According to appellants, environmental G
clearance was granted to the respondent No. 9 on 17.02.2012 for
which notice was published in the leading newspaper on
12.03.2012 and 14.03.2012. Modified building plan was approved
on 30.08.2012, which was followed up to 10.08.2014. Similar
H
1000 SUPREME COURT REPORTS [2019] 4 S.C.R.
A events had taken place in regard to the project of respondent
No. 10 who had been granted environmental clearance on
30.09.2013. The application had to be filed within a period of six
months from the date on which cause of action for such dispute
has first arisen in terms of Section 14 of the NGT Act. Admittedly,
the present application has been filed in March, 2014 and
B
according to them, it is much beyond the prescribed period of
limitation. Also, there is no application for condonation of delay
accompanying the main application. Therefore, the Tribunal will
not have jurisdiction to condone the delay. [Para 48] [1027-F-H]
10. The OA No. 222 of 2014 filed before the Tribunal was
C not an application simpliciter under Section 14 of the Act. It was
an application where a specific prayer has been made with
reference to Lake Development Authority’s (“LDA”) Report
dated 12.06.2013 and the Ministry of Environment, Forest and
Climate Change (“MoEF”) Monitoring Committee Report dated
D 14.08.2013 for restoration of ecologically sensitive land and for
maintaining the sensitive in its natural condition so that the
ecological balance of the area is not disturbed. It is clear from
the documentary evidence supported by data, that the project
proponents have committed breaches and the implementation of
the project is bound to have serious adverse impact on the ecology,
E hydrology and the environment in the catchment area of Bellandur
Lake. The environmental degradation as established from the
documents would give rise to an independent cause of action.
Therefore, this was a petition under Section 15 of the Act and
thus it could be filed within 5 years from the date on which the
F cause for such compensation or relief first arose.
[Para 49] [1028-A-D]
11. In fact, in the original application before the Tribunal
there was no mention of the provision under which it was being
filed. It is well settled principle of law that non-mention of or
G erroneous mention of the provision of law would not be of any
relevance, if the Court had the requisite jurisdiction to pass an
order. It would be a mere irregularity and would not vitiate the
application or the judicial order of the Tribunal. [Para 50]
[1028-D-E]
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1001
12. The Tribunal has pointed out on the basis of the A
Committee report of August 2015, that the appellant had
encroached 3 acres 10 guntas of Bellandur Lake and a boundary
wall has been raised around the said land. The Tribunal has also
found that the project proponents have violated the Master Plan.
They have not obtained the mandatory clearance from the
B
Sensitive Zone Committee constituted by the Government of
Karnataka. It is also clear from the materials on record that
there are several other violations by the project proponents. The
Tribunal has discussed all these issues. It is also clear from the
materials on record that there is a definite possibility of
environment, ecology, lakes, and wetland being adversely affected C
by these projects. [Para 52] [1028-G-H; 1029-A-B]
13. The findings arrived at by the Tribunal are not only
based on the documents that were available on record but also
on the pleadings that were made by the parties buttressed by the
Committee’s report and the inspection note of the Expert D
Members. Therefore, the directions passed and the penalty
imposed by the Tribunal on both project proponents are valid
and sustainable and do not suffer from any perversity.
[Para 54] [1030-F-G]
Kishsore Lal v. Chairman, Employees’ State Insurance E
Corpn.(2007) 4 SCC 579 : [2007] 6 SCR 139 ;
Sir Chunilal V. Mehta and Sons, Ltd. v. Century Spinning
and Manufacturing [1962] 3 Suppl. SCR 549
– relied on.
Case Law Reference
F
[1962] 3 Suppl. SCR 549 relied on Para 37
[2007] 6 SCR 139 relied on Para 44
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5016
of 2016
From the Judgment and Order dated 04.05.2016 of the National
G
Green Tribunal, Principal Bench, New Delhi in Original Application No.
222 of 2014
With
Civil Appeal Nos. 8002-8003, 12326, 9227, 10995, 10993, 10994,
10992, 12157, 12152, 12156, 12158, 12160, 12159 of 2016, 4923-4924,
1343, 14966 of 2017, 2246 of 2018. H
1002 SUPREME COURT REPORTS [2019] 4 S.C.R.
A Udaya Holla, Adv. General, Shashi Kiran Shetty, Maninder Singh,
Dharuv Mehta, Mukul Rohatgi, Neeraj Kishan Kaul, R. Venkataramani,
Sajan Poovayya, Ms. Kiran Suri, Basavaprabhu S. Patil, Sr. Advs.,
Mahesh Thakur, Ms. Anuparna Bordoloi, Savyasachi Sahai, Ms. Vipasha
Singh, Gaurav Goel, V. N. Raghupathy, M/S. Devasa & Co., Devashish
Bharuka, Justine George, Prabhas Bajaj, Ms. Kanika S., Ravi Bharuka,
B
Ms. Sarushree, Satish Kumar, Gaurav Agrawal, George Thomas, Anurag
Gharote, A. S. Bhasme, Abid Ali Beeran P, Nishanth Patil, Rohit Prasad,
Ananth Suresh, S. K. Kulkarni, M. Gireesh Kumar, Ankur S. Kulkarni,
Shekhar G. Devasa, Bhuvanendra K.V., S. Mahesh, Manish Tiwari, Luv
Kumar, Praveen Vignesh, M/S. Devasa & Co., Priyadarshi Banerjee,
C Pratibhanu Singh Kharola, Saransh Jain, Meka V. Ramakrishna,
Madhavam Sharma, Ms. Sriparna Dutta Choudhury, Udayaditya
Banerjee, Mahesh Agrwal, Ankur Saigal, Sarans Jain, Ms. Tanvi
Manchanda, Nithin P., Ms. Priyanka M.P., E. C. Agrawala, Devashish
Bharuka, S.J. Amith, Ms. Rithika Gambir, A. Shwarya Kumar,
Dr. (Mrs. ) Vipin Gupta, Parikshit P. Angadi, Chinmay Deshpande, Geet
D
Ahuja, Parikshit Angadi, Anup Kumar, O. P. Bhadani, Rajesh Mahale,
Anand Sanjay M. Nuli, Dharm Singh, Sandeep Grover, Ms. Pankhuri
Bhardwaj, Pai Amit, Advs. for the appearing parties.
The Judgment of the Court was delivered by
E S. ABDUL NAZEER, J. 1. These appeals have been preferred
under Section 22 of the National Green Tribunal Act, 2010 (for brevity
‘NGT Act’) challenging the judgment and order dated 07.05.2015 and
04.05.2016 respectively passed by the Principal Bench of the National
Green Tribunal, New Delhi (for short ‘the Tribunal’).
F 2. The appellants in Civil Appeal Nos. 5016 of 2016 and 8002-
8003 of 2016 are respondent Nos. 9 and 10 in the Original Application
No. 222 of 2014 (hereinafter referred to as ‘the respondent Nos. 9 and
10’). The said Application was filed by respondent Nos.1 to 3 herein
(hereinafter referred to as ‘the applicants’). Respondent Nos. 4 to 7 in
these appeals are the State of Karnataka and other authorities. They
G were arrayed as respondent Nos. 1 to 4 in the application. Respondent
Nos. 12 and 13 herein were subsequently impleaded in the application
(for short ‘the impleaded respondents’).
3. The State of Karnataka has filed Civil Appeal Nos. 4923-4924
of 2017, challenging the general condition and direction No.(1) contained
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1003
[S. ABDUL NAZEER, J.]
in the order of the Tribunal dated 04.05.2016. The other appeals have A
been filed by different entities, who were not parties before the Tribunal
challenging the order of the Tribunal dated 04.05.2016 insofar as it directs
a buffer/green zone of 75 meters in respect of lakes, 50 meters in respect
of primary Rajakaluves, 35 meters in case of secondary Rajakaluves
and 25 meters in case of tertiary Rajakaluves with retrospective effect.
B
According to them, they are adversely affected by the aforesaid condition
in the impugned order.
4. The applicants filed O.A. No.222 of 2014 by contending that
ecologically sensitive land was allotted by the Karnataka Industrial Area
Development Board (for short ‘the KIADB’) to respondent Nos. 9 and
10 vide Notifications dated 23.04.2004 and 07.05.2004 respectively for C
setting up of Software Technology Park, Commercial and Residential
complex, hotel and Multi Level Car Parks. The Master Plan formulated
by the Bangalore Development Authority (for short the ‘BDA’), identifies
the allotted land as ‘Residential Sensitive’, though the same land was
identified in the Draft Master Plan as ‘Protected Zone’. It was further D
contended that the Revenue Map in respect of properties as referred in
the Land Lease Agreements has multiple Rajakaluves (Storm Water
Drains). The development projects in question sit right on the catchment
and wetland area which feeds the Rajakaluves, which in turn drains rain
water into Bellandur Lake. The project will thus encroach two Rajakaluves
of 1.38 acres and 1.23 acres each. E
5. The Satellite Digital Images of the area from the year 2000 to
2012 show encroachment upon these Rajakaluves, as well as the manner
in which they are covered by the construction. The State Level Expert
Appraisal Committee (for short ‘SEAC’), which was to assist the State
Level Environment Impact Assessment Authority (for short ‘SEIAA’), F
held its meetings on various dates to examine the project. It had required
the appellant No.9 to submit a revised NOC from the Bangalore Water
Supply and Sewerage Board (for short ‘BWSSB’) for the project in
question. It was also observed that the project lies between the Bellandur
Lake and the Agara Lake. Respondent No.9 was also directed to take G
protective measures to spare the buffer zone around Rajakaluves and
also to commit that no construction would be carried out in the buffer
zone. In the meeting of 11.11.2011, it was recorded that the project
proposes car parking facility for 14,438 cars in that environmentally
sensitive area.
H
1004 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 6. It was alleged that NOC was issued covering an area of 17,404
sq. mtrs. whereas the built up area, as noted by SEAC, is 13,50,454.98
sq. mtrs. Respondent No.9 obtained NOC from BWSSB by concealing
material facts and by misrepresenting that NOC is required only for
residential units which form a very minuscule part of the total project.
Respondent No.9 had approached the Karnataka State Pollution Control
B
Board (for short ‘the KSPCB’) for obtaining clearance, which was
granted on 04.09.2012 subject to the fulfillment of the conditions stated
in the consent order which included leaving the buffer zone all along the
valley and towards the lake. It is further contended that the grant of
consent by the KSPCB to respondent No.9 also contained a condition
C with regard to obtaining Environmental Clearance from the Competent
Authority and no construction was to commence until such clearance
was granted.
7. Applicants further contended that respondent No.9 violated the
conditions and commenced construction of the project. There was also
D violation of the stipulations stated in the approval of SEAC in relation to
buffer zone and construction over Rajakaluves. The construction had
been commenced over the ecologically sensitive area of the lake
catchment area and valley, with utter disregard to the statutory
compliances. Referring to these blatant irregularities, the applicant
submitted that the conversion of land from ‘Protected Zone’ to
E ‘Residential Sensitive Area’ is violative of the law. The project is right in
the midst of a fragile wetland area which ought not to have been disturbed
by the development activity. The fragile environment of the catchment
area has been exposed to grave and irreparable damage. It has severely
disturbed and damaged the Rajakaluves. Respondent Nos. 9 and 10
F started to level the land by filling it with debris, thus causing damage to
the drains. The conditions with regard to no-disturbance to the Storm
Water Drains, natural valleys and buffer area in and around the
Rajakaluves have been violated. It has in turn, affected the ground water
table and bore wells which are the only source of water for thousands of
households. Fishing and agriculture which depends on Bellandur Lake
G are also severely affected. The construction over the wetland between
the two lakes is in violation of Wetlands (Conservation of Management)
Rules, 2010 (for short ‘Rules of 2010’).
8. It was submitted that SEIAA in its meeting dated 29.09.2012,
decided to close the file pertaining to respondent No. 10 due to non-
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1005
[S. ABDUL NAZEER, J.]
submission of requisite information and the application thereof was A
rejected in November, 2012. Despite the rejection, respondent No.10
commenced construction on the project in full swing.
9. The applicants also relied upon the findings of the Joint
Legislative Committee, constituted under the Chairmanship of Shri A.T.
Ramaswamy in the month of July 2005, which stated that there were B
262 water bodies in the Bangalore city in 1961 which drastically came
down because of trespass and encroachments. It was also affirmed that
about 840 kms. of Rajakaluves have been encroached upon in several
places and have become sewage channels. The applicants also relied on
the Report of the Committee under the Chairmanship of Hon’ble Mr.
Justice N.K. Patil suggesting immediate remedial action in order to C
remove encroachments on the lake area and the Rajakaluves and
preservation of the lakes in and around Bangalore city. It was further
contended that other Expert Committees, including Lakshman Rau Expert
Committee had also submitted proposals for preservation, restoration or
otherwise of the existing tanks in Bangalore Metropolitan Area which D
recommended to maintain good water surface in Bellandur tank and to
ensure that the water in the tank is not polluted. The Central Government
in August 2013 had issued an advisory on conservation and restoration
of water bodies in the urban areas. The applicants claim to have obtained
monitoring report of the project by respondent No.5, Ministry of
Environment and Forests, through RTI on 21.08.2013. The report dated E
14.08.2013 revealed that the project proponents are in clear breach of
their undertaking to carry out all precautionary measures to ensure that
the Bellandur lake is not affected by the construction and operational
phase of the project. This approach is particularly with regard to the
major alteration in natural sloping pattern of the project site and natural F
hydrology of the area.
10. The Lake Development Authority (for short ‘the LDA’), after
inspection in the catchment area of the Bellandur Lake submitted its
report dated 12.06.2013 which confirms that the project will have
disastrous impact, including deleterious effect on the Bellandur Lake. G
This report was brought to the notice of KIADB. The LDA has also
opined that the land should be classified and maintained as sensitive
area. The KIADB called upon respondent No. 9 to comply with the
rules of Ecology and Environment Department and to obtain necessary
approval from KSPCB and LDA. Despite all this, respondent Nos. 9
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1006 SUPREME COURT REPORTS [2019] 4 S.C.R.
A and 10 have continued with their illegal constructions and have caused
damage to the ecology and the environment by irreparably jeopardizing
the ecological balance in this sensitive area. The applicants rely upon
the Revised Master Plan, 2013 issued by BDA which specifically provides
that 30 meters buffer zone is to be created around the lakes and 50
meters buffer zone to be created on either side of the Rajakaluves. It
B
was also pleaded that respondent No. 9 had obtained the NOC from
BWSSB only with regard to residential units and not for the entire project
and that the Environmental Clearance obtained by respondent No.9 is
based upon the partial NOC issued by BWSSB which itself is a
misrepresentation. It was contended that the projects are bound to create
C water scarcity as the requirement of the project of respondent No. 9
alone is approximately 4.5 million liters per day, i.e. 135 million liters per
month, which is more than what the BWSSB supplies to the entire
Agaram Ward. The construction of respective projects by respondent
Nos.9 and 10 respectively, besides having commenced without permission
from the authorities and being in violation of the conditions imposed for
D
grant of permission/consent, is bound to damage the environment, resulting
in change in the topography of the area, posing potential threat of
extinction of the Bellandur lake, causing traffic congestion, shortening
and wiping out the wetlands, extinction of Rajakaluves and causing serious
and potential threat of flooding and massive scarcity of water in the city
E of Bangalore, particularly the areas located near the water bodies.
11. Respondent No.9 in its objections contended that it was
incorporated with the objective of establishing an Information Technology
Park and R & D Centre with facilities such as residential complexes,
parks, education centres and other allied infrastructure within a single
F compound. It had submitted the proposal to establish such Information
Technology Park and other facilities to the State Government and
requested for allotment of land for the project. Its proposal was considered
in 78th High Level Committee meeting held on 21.06.2000 and after
examining the proposal, it was approved by the Government on
06.07.2000. Before the State High Level Committee, it had informed
G that its requirement was 110 acres of land, 25 MW of power from the
Karnataka Power Transmission Corporation Limited (for short the
‘KPTCL’), and four lakh litres of water per day from BWSSB. The
lands for the project were initially notified vide Notification dated
10.02.2004. Subsequently, the lands were allotted vide letter dated
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MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1007
[S. ABDUL NAZEER, J.]
28.06.2007 for which Lease-cum-Sale Agreement was signed on A
30.06.2007. Considering the overall development of the State of
Bangalore, this respondent proposed a Mixed Use Development Project
consisting of an Information Technology Park, residential apartments,
retail, hotel and office buildings with a total built up area of 13,50,454.98
sq mtrs. The Project was conceived as a zero waste discharge project.
B
The project is located one and a half kms. away from the southern-side
of the Bellandur Lake. Towards the North, adjacent to the Project, lies
vast stretches of lands belonging to the Defence and towards the East,
lies the Project of respondent No. 10 and another developer is also
developing a project on the western side. It has obtained sanction plan
on 04.07.2007 which was renewed from time to time. C
12. Respondent No. 9 claims that it has obtained NOC from Airport
Authority of India on 09.04.2010. Bharat Sanchar Nigam Ltd, vide its
communication dated 16.04.2010, granted clearance for the project
construction. BWSSB, vide its communication dated 26.04.2011 issued
NOC for portion of the proposed construction to be built. The Bangalore D
Electricity Supply Company Ltd. also granted NOC for arranging power
supply to the proposed residential and commercial building in its favour.
Environmental Clearance was granted by SEIAA vide communication
dated 17.04.2012. The Director General of Police has issued NOC and
KSPCB vide order dated 04.09.2012 accorded its consent for construction
of the said project subject to the conditions stated therein. It was further E
stated that after grant of the Environmental Clearance on 17.09.2012,
the same was published in the leading newspapers “Kannada Prabha”
and “The Indian Express” on 12.03.2012 and 14.03.2014 respectively.
13. It submitted a modified the building plan which was approved
by KIADB vide its letter dated 30.08.2012, which was valid up to F
10.08.2014. It started the construction of the project in November 2012,
taking all precautions as per terms and conditions of the orders issued by
the competent authorities. It was also submitted that it has raised the
constructions in accordance with the plans and conditions of the
Environmental Clearance and consent orders and that it has not violated G
any of the conditions and has not caused any adverse impact on the
ecology and environment of the area. It has denied the contention that
its construction activity has blocked the Rajakaluves and has adversely
affected the lake. It has already spent a sum of Rs 306.73 crores on the
project towards procurement of men and materials, machinery,
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1008 SUPREME COURT REPORTS [2019] 4 S.C.R.
A infrastructure, medical and sanitary facilities, etc. and that it has availed
financial assistance from various banks and financial institutions towards
the construction and execution of the project and that various contracts
have been signed with the third parties. It is specifically pleaded that the
petition is barred by time and suffers from defects and laches.
B 14. Respondent No.10 pleaded that the applicants raised
multifarious proceedings against it which is an abuse of the process of
law and mala fide. It had submitted a revised proposal in respect of its
project in question and to obtain fresh clearance on 31.08.2007 with an
investment of Rs. 179.22 crores. The State High Level Committee had
cleared the project which was communicated to it on 25.01.2008. Its
C properties are located in between Bellandur Lake and Agara Lake but
there are no primary storm water drains and secondary storm water
drains that exist in its properties. It has clearances from various
authorities, including Environmental Clearance and consent for
establishment.
D 15. KIADB stated that after possession of the land was handed
over to respondent Nos. 9 and 10, one year time was granted for the
implementation of the project which was extended from time to time.
The building drawings were approved on 04.07.2007, and the modified
building drawings were approved on 26.04.2011 and 30.08.2012 with
E specific conditions. In its meeting held on 16.07.2013, it was resolved to
inform respondent No. 9 to fully comply with the Ecology and
Environment Rules and to obtain approvals from the LDA and KSPCB.
LDA vide its letter dated 24.09.2013, had informed KIADB that the
construction activity in the catchment area in the Bellandur Lake could
drastically impact the Lake with deleterious effects and asked it to stop
F construction activity of respondent Nos. 9 and 10. However, the validity
of the building drawings was again extended up to 10.08.2014. The
Lokayukta on 17.12.2013 had written a letter in respect of complaint
filed by the South East Forum for Sustainable Development where it
had been averred that the decision had been taken by the Board on
G 21.12.2013 to keep in abeyance the approval accorded and even the re-
validations of plans. This was also informed to respondent No.9. The
Board took a decision which was communicated to respondent No.9 on
02.01.2014, wherein it asked the respondent No.9 to stop all construction
activities on the allotted lands. The said communication was challenged
by respondent No. 9 and on the stop-work notice, stay was granted by
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MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1009
[S. ABDUL NAZEER, J.]
the High Court of Karnataka. The stop-work notice dated 23.12.2013 A
issued by Bruhat Bengaluru Mahanagara Palike (for short ‘BBMP’)
was also stayed vide order dated 21.01.2014. The proposal submitted
by respondent Nos. 9 and 10 had been approved by the State Government.
The land allotted to respondent Nos. 9 and 10 does not consist of any
Rajakaluves.
B
16. The LDA took a stand that it was not at all aware of the
project initiated by KIADB. It came to know about the entire project
only when certain newspaper reports surfaced during the month of June,
2013 and till that time it was in the dark. After the complaints, it inspected
the Bellandur Lake and the Agara Lake on 12.06.2013 and prepared an
inspection report. In the report, it was noticed that large scale construction C
activities were going on in the catchment area of Bellandur Lake and
that there was a change in the land use, which in turn has directly affected
the catchment of Bellandur Lake. The wetland area of Agara Lake had
also shrunk, which originally formed the irrigation area for the adjoining
agricultural lands. Therefore, it had questioned the decision of KIADB D
vide letter dated 06.07.2013 and even requested it to stop the construction
activity and to re-classify the land as non-SEZ area. It was thereafter
on 31.08.2013, that respondent No. 9 wrote a letter for according approval
for the proposed development projects. However, vide its letter dated
23.09.2013, LDA informed KIADB that it had no authority to grant or
deny construction projects, but it also communicated its objections to E
KIADB mentioning that construction activity would be in contravention
of the directions of the Supreme Court. Despite these warnings, KIADB
granted approval to the extension of the building drawings of the project
in favour of the project proponents with certain conditions, like ensuring
that all natural valleys, valley zone, irrigation tanks and existing roads F
leading to villages in the said land should not be disturbed. Further, the
natural sloping pattern of the project site was not to be altered and the
lakes and other water bodies within and/or at the vicinity of the project
area should be protected and conserved. Despite the objections, the
plans were approved and approvals were extended from time to time. It
has taken a categorical stand that the projects as approved by the KIADB G
would have adverse impact on Bellandur and Agara Lakes.
17. On the basis of the pleadings of the parties, the Tribunal framed
the following questions for consideration and determination:
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1010 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 1. Whether the application filed by the applicants and supported
by respondent Nos. 11 and 12, is barred by time and thus, not
maintainable?
2. Whether the petition as framed and reliefs claimed therein,
disclose a cause of action over which this Tribunal has
B jurisdiction to entertain and decide the application under the
provisions of the NGT Act, 2010?
3. Whether the present application is barred by the principle of res
judicata and/or constructive res judicata?
4. Whether the application filed by the applicants should not be
C entertained or it is not maintainable before the Tribunal, in view
of the pendency of the Writ Petitions 36567-74 of 2013, before
the Hon’ble High Court of Karnataka? and
5. What relief, if any, are the applicants entitled to? Should or not
the Tribunal, in the interest of environment and ecology issue
D any directions and if so, to what effect?
18. The Tribunal by its order dated 07.05.2015 at Annexure A-2,
disposed of the applications with the following directions:
1) We decline to pass any direction or order to stop further progress
and/or demolition of the project or any part thereof at this stage.
E
However, we constitute the following Committee to inspect the
projects in question and submit a report to the Tribunal inter alia
but specifically on the issues stated hereinafter:
a) Advisor in the Ministry of Environment and Forest dealing with
the subject of wetlands.
F
b) CEO of the Lake Development Authority, Karnataka State.
c) Chief Town Planner of BBMP, Bangalore.
d) Chairman of SEAC which recommended the grant of
Environmental Clearance to the projects in question.
G
e) Sr. Scientist (Ecology) from the Indian Institute of Sciences,
Bangalore.
f) Dr. Siddharth Kaul, former Advisor to MoEF.
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[S. ABDUL NAZEER, J.]
g) A Senior Officer from the National Institute of Hydrology, A
Roorkee.
2) Member Secretary of the Karnataka State Pollution Control
Board shall act as the Convener of the Committee and would submit the
final report to the Tribunal.
3) The Committee shall inspect not only the sites where the projects B
in question are located but even other areas of Bangalore which the
Committee in its wisdom may consider appropriate, in order to examine
the interconnectivity of lakes and impact of such activities upon the water
bodies with particular reference to lakes.
4) The Committee shall submit whether the projects in question C
have encroached upon or are constructed on the wetlands and
Rajakaluves. If so, are there any adverse environmental and ecological
impact of these projects on the lake, particularly Bellandur Lake and
Agara Lake, as well the Rajakaluves. The report should specify, if any
Rajakaluves have been covered by the construction activities of D
respondent Nos. 9 and 10 or by any of the projects in the area in question.
5) Committee should submit in its report, if these projects have
any adverse impacts upon the surrounding ecology and environment,
with particular reference to lakes and wetlands. If yes, then whether
any part of the project is required to be demolished. If so, details thereof E
along with reasons.
6) The Committee shall substantially notice if any of the conditions
of the Environmental Clearance order in each case of respondent Nos.
9 and 10 have been violated. If so, to what extent and suggest remedial
measures in that behalf to restore the ecology of the area. F
7) The Committee would also recommend what should be the
buffer zone around the lake(s) and interconnecting passages and wetlands.
The Committee shall also report, whether activities of multipurpose
projects which have serious repercussions on traffic, air pollution,
environment and allied subjects should be permitted any further or not,
G
particularly, in wetlands and catchment areas of water bodies.
8) Recommendations should be made with regard to the steps
and measures that should be taken for restoration of lakes, particularly
in the city of Bangalore.
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1012 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 9) The Committee shall also find out that whether the construction
of the projects is in accordance with the sanctioned drawings and bye-
laws in accordance with the letters dated 4th July, 2007 and 22nd April,
2008 respectively. Further, the Committee would also report whether
both respondent Nos. 9 and 10 have installed ETP/STP and have taken
full measures for recycling of used water for washing and flushing, etc.
B
in terms of letters dated 11th October, 2013 and 3rd January, 2013, issued
by the Karnataka Industrial Area Development Board to respondent
Nos. 9 and 10 respectively.
10) In the event, the Committee is of the opinion that the adverse
impacts noticed are redeemable, then what directions need to be issued
C in that behalf and the cost involved for achieving the said conservation
and restoration of lakes and water bodies.
11) Till the submission of the report by the Committee and directions
passed by the Tribunal in that regard, both respondent Nos. 9 and 10 are
hereby restrained from creating any 3rd party interests or part with the
D possession of the property in question or any part thereof, in favour of
any person.
12) The Committee shall submit its report to MoEF and to this
Tribunal as expeditiously as possible and in any case not later than three
months from today. During that period we restrain MoEF, SEIAA and/
E or any public authority from sanctioning any construction project on the
wetlands and catchment areas of the water bodies in the city of Bangalore.
13) The Committee shall report if the project proponents are
proposing to discharge their trade or domestic effluents into the lake or
any of the water bodies in and around of the area in question.
F
14) For the reasons stated in the judgment, respondent No. 9 is
liable and shall pay a sum of Rs. 117.35 crores, while respondent No. 10
shall pay a sum of Rs. 22.5 crores respectively being 5 per cent of the
project value, within two weeks from today. The said amount would be
paid to the KSPCB, which shall maintain a separate account for the
G same and would spend this amount for environmental and ecological
restoration, restitution and other measures to be taken to rectify the
damage resulting from default and non–compliance to law by the Project
Proponent in that area, after taking approval of the Tribunal.
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MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1013
[S. ABDUL NAZEER, J.]
15) We make it clear that the said respondents would not be entitled A
to pass on the amount in terms of direction 14, on to the purchasers
because this liability accrues as a result of their own intentional defaults,
disobedience of law in force and carrying on project activities and
construction illegally and unauthorizedly.
19. Feeling aggrieved by the said order, respondent Nos. 9 and 10 B
filed Civil Appeal Nos. 4829 and 4823 of 2015 before this Court. This
Court by its Order dated 20th May, 2015 passed the following order:
“One of the main contentions raised by the Appellants in
these Appeals is that though the Tribunal had heard the matter
only on preliminary issues and no arguments on merit were
advanced, final judgment decides the merits of the disputes as C
well and above all a penalty of Rs.117.35 crores against the original
Respondent No.9 (the Appellant in C.A. No. 4832 of 2015) and
Rs. 22.5 crores against Original Respondent No. 10 (the appellant
in C.A. No. 4829/2015) is imposed.
On the aforesaid averment, we feel that it would be more D
appropriate for the appellant to file an application before the
Tribunal with the prayer to recall the order on merits and decide
the matter afresh after hearing the counsel for the parties, as the
Tribunal knows better as to what transpired at the time of hearing.
With the aforesaid liberty granted to the petitioners, the E
appeals are disposed of. Certain preliminary issues are decided
against the appellants which are also the subject matter of
challenge. However, it is not necessary to deal with the same this
stage. We make it clear that in case the said application is decided
against the appellants or if ultimately on merits, it would be open
to the appellants to challenge those orders by filing the appeal and F
in that appeal all the issues which are decided in the impugned
judgment can also be raised.
The counsel for the appellants state that they would file the
requisite application within one week. Till the said application is
decided by the Tribunal, there shall be stay of the direction G
pertaining the payment of aforesaid penalty. Mr. Raj Panjwani
points out that the Tribunal has allowed the appellants to proceed
with the construction only on the payment of the aforesaid fine/
penalty. We leave it to the Tribunal to pass whatever orders it
deems fit in this behalf, after hearing the parties.”
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1014 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 20. In relation to Issue No.5, an opportunity of hearing was granted
to the respondents. The Tribunal passed order dated 06.04.2016 on these
applications as under:
“M.A. No. 603 of 2015 and M.A. No. 596 of 2015
These Applications have been filed on behalf of the Respondent 9
B & 10 respectively. It is not necessary for us to refer to any details
in view of the directions that we propose to issue in this case.
Without prejudice to the rights and contentions of the parties
and subject to just exception we would hear the parties in terms
of the order of the Hon’ble Supreme Court of India primarily on
C the question of imposition of Environmental Compensation and
merits attached in relation thereto. Parties are given liberty to
address their submissions on that behalf.
With the above directions the M.A. No. 603 of 2015 and M.A.
No. 596 of 2015 stand disposed of without any order as to cost.”
D
21. It is evident from the above orders that the Tribunal had granted
opportunity to the parties to address it “limited question”, as
aforementioned. The Tribunal after hearing the parties passed an order
dated 04.05.2016 as under:
“General Conditions or directions:
E
1. In view of our discussion in the main Judgment, we are of the
considered view that the fixation of distance from water bodies
(lakes and Rajkalewas) suffers from the inbuilt contradiction, legal
infirmity and is without any scientific justification. The RMP –
2015 provides 50m from middle of the Rajkalewas as buffer zone
F
in the case of primary Rajkalewas, 25m in the case of secondary
Rajkulewas and 15m in the tertiary Rajkulewas in contradiction
to the 30m in the case of lake which is certainly much bigger
water body and its utility as a water body/wetland is well known
certainly part of wet land. Thus, we direct that the distance in the
G case of Respondents Nos. 9 and 10 from Rajkulewas, Waterbodies
and wetlands shall be maintained as below:-
(i) In the case of Lakes, 75m from the periphery of water
body to be maintained as green belt and buffer zone for all the
existing water bodies i.e. lakes/wetlands.
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[S. ABDUL NAZEER, J.]
(ii) 50m from the edge of the primary Rajkulewas. A
(iii) 35m from the edges in the case of secondary Rajkulewas
(iv) 25m from the edges in the case of tertiary Rajkulewas
This buffer/green zone would be treated as no construction
zone for all intent and purposes. This is absolutely essential for B
the purposes of sustainable development particularly keeping in
mind the ecology and environment of the areas in question.
All the offending constructions raised by Respondents Nos.
9 and 10 of any kind including boundary wall shall be demolished
which falls within such areas. Wherever necessary dredging C
operations are required, the same should be carried out to restore
the original capacity of the water spread area and/or wetlands.
Not only the existing construction would be removed but also none
of these Respondents - Project Proponent would be permitted to
raise any construction in this zone.
D
All authorities particularly Lake development Authority shall
carry out this operation in respect of all the water bodies/ lakes of
Bangalore.
2. The capacity of the existing STPs to treat sewage is 729
MLD, whereas another 500 MLD sewage is proposed to be treated
E
in 10 upcoming STPs. In this context, all the STPs operating in
the area whether Government or privately owned, should meet
the revised standards notified by CPCB/MoEF.
3. Bangalore city receives treated potable water of 1360 MLD
from river Cauvery whereas the requirement is for another 750
F
MLD and the entire area falls in critical zone in terms of ground
water exploitation. Information reveals that only one million litre
per month of STP treated water is used by builders for construction
purposes. For this reason, the BWSSB issues partial NOC to
various residential and commercial projects in respect of supply
of potable water. In this context, following directions need to be G
issued:
i. At the time of grant of EC, the water requirement for the
construction phase and operation phase should be considered
separately. Due consideration should also be given for
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1016 SUPREME COURT REPORTS [2019] 4 S.C.R.
A identification of source of supply of water and this should be a
pre-requisite for grant of EC.
ii. All the project proponents should necessarily use only treated
sewage water for construction purpose and this should be
reflected in EC as a condition for construction phase.
B iii. Wherever the quality of treated sewage water does not
conform to the quality needed for construction, necessary
upgradation in STP should be undertaken immediately.
Specific Conditions/ Directions for Respondent 9;
C In addition to the above directions which should be equally part of
EC condition in respect of respondents nos. 9 & 10, following
specific conditions shall apply to respondent no. 9:
i. Reclaimed area of the lake to the extent of 3 acres 10 guntas
in survey No. 43 should be restored to its original condition at
D the cost of project proponent. The possession of this area should
be restored by Respondent No. 9 to the concerned Authorities
immediately. In addition, a buffer zone of 75 m should be
provided between the lake and the project area and this should
be maintained as green area.
ii. In the remaining area, where primary Rajkalewa is abutting
E
the project area, 50 m buffer zone on the side of the project
area from the edge of the rajkalewa should be maintained as
green belt.
iii. Several irrigation canals or tertiary rajkalewas taking off
from the Agara tank were passing through the area of
F
respondent No. 9, and serve the dual purpose of irrigating paddy
fields and disposal of surface run off (storm water drains) during
rainy season. However on account of the activities of the
project, these drains have been totally obliterated. For the
purpose of proper disposal of storm runoff from the entire area
G falling between the Agara lake and the Belandur Lake,
respondent No. 9 must provide required number of storm water
drains based on proper hydrological study. These storm drains
should have a buffer zone of 15 m on either bank maintained
as green belt.
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[S. ABDUL NAZEER, J.]
iv. The cumulative quantity of earth excavated for the A
construction of project is around 4 lakhs cubic meters in the
depth range of 0 to 9 meters. This has created huge hillock like
structure obstructing the natural flow pattern of surface runoff
from Agara Lake side to Balendur Lake side or primary
Rajkalewas. For this purpose, during construction phase garland
B
drain should be constructed around the existing dumping site
for safe disposal of runoff to the Rajkalewas. For the disposal
of excavated material, a proper muck disposal plan duly
approved by SIEAA shall be prepared. In any case the plan
should ensure that no muck/sediment flows into Rajkalewas
and/or Belandur lake. C
v. The Kharab land identified by Revenue Dept. admeasuring
1 acre 2 guntas should be demarcated and maintained
separately as green belt.
vi. The entire green belt created under the directions of this
Tribunal should not to be considered as part of green belt of D
the project as part of EC condition and will be over and above
the green belt as indicated in the EC.
vii. In view of the heavy traffic load in the adjoining Sarjapur
road, a proper study on the basis of traffic density,foot falls
expected, etc., a proper plan needs to be prepared and the E
concept of service road exclusively for the project needs to be
worked out and additional parking space created within the
project area and incorporated as a part of the overall project
layout, within a period of 3 months.
10. Though, at the time of hearing prior to passing the Judgment, F
we had heard the parties on all aspects but still we have provided
re-hearing to the parties on all issues with emphasis on imposition
of environmental compensation including the quantum. Upon
hearing, we are of the considered view that environmental
compensation imposed upon Respondent No. 9 calls for no G
variation and the Respondent No. 9 should be called upon to pay
the said amount of Rs. 117.35 Crores determined under the
Judgment prior to commencement of any project activity at the
site. Respondent No. 10 has not commenced any actual
construction activity but has carried out various preparatory steps
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1018 SUPREME COURT REPORTS [2019] 4 S.C.R.
A including excavation and deposition of huge earth by creating a
hillock at the premises in question and a site office.
Thus, considering cumulative effect on environment and
ecology due to various breaches in that behalf by Respondent
No. 10 and the fact that the remedial measures can more
B effectively be taken by the Respondent No.10, we reduce
environmental compensation payable by Respondent No. 10 to
Rs. 13.5 crores (3% of the stated project cost instead of 5% as
imposed in the original judgment).
General Directions:
C 1. We direct SEIAA, Karnataka to issue amended order granting
Environmental Clearance within four weeks from today
incorporating all the conditions stated in this judgement and such
other conditions as it may deem appropriate in light of this judgment
and Inspection Note of the Expert Members. The Project
D Proponents would be permitted to commence activity only after
issuance of amended Environmental Clearance order.
2. SEIAA Karnataka and MoEF shall ensure regular supervision
and monitoring of the project and during the construction and even
upon completion to ensure that activity is carried out strictly in
E accordance with the conditions of the order granting Environmental
Clearance, this Judgment, Notification of 2006 and other laws in
force.
3. The distances in respect of buffer zone specified in this judgment
shall be made applicable to all the projects and all the Authorities
F concerned are directed to incorporate such conditions in the
projects to whom Environmental Clearance and other permissions
are now granted not only around Belandur Lake, Rajkulewas,
Agara Lake, but also all other Lakes/wetlands in the city of
Bengluru.
4. We hereby direct the State of Karnataka to submit a proposal
G
to the MoEF for demarcating wetlands in terms of Wetland Rules
2010 as revised from time to time. Such proposal shall be submitted
by the State within four weeks from today and the MoEF shall
consider the same in accordance with law and grant its approval
or otherwise within four weeks thereafter. After such approval is
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[S. ABDUL NAZEER, J.]
granted by MoEF, the State would issue notification notifying such A
areas immediately thereafter in accordance with Rules and law.
5. Both the Respondents Nos. 9 and 10 shall ensure that debris or
any construction material that has been dumped into the
Rajkulewas, or on their Banks and on the buffer zone of wetlands
should be removed within four weeks from today. In the event B
they fail to do so, the same shall be removed by the Lake
Development Authority along with the State Administration and
recover charges thereof from the said Respondents.
6. There is a serious discrepancy even in regard to the measurement
of land as far as Respondent No. 9 is concerned. Admittedly the C
Respondent has been allotted and is in possession of land
admeasuring 63.94 acres, though Environmental Clearance has
been granted for 2,92,636.03 Sq. Meters which is equivalent to
72.22 acres. For this reason alone, Environmental Clearance
cannot be given effect to. While issuing the amended
Environmental Clearance, SEIAA Karnataka shall take into D
consideration all these aspects and, if necessary, would require
Respondent No. 9 to submit a fresh layout plant and the entire
project may be revised in accordance with law.
7. Both the Respondents (Project Proponents) shall submit an
appropriate plan in view of the conditions imposed in this judgment E
and the amended Environmental Clearance that would be issued.
8. The amount of environmental compensation will be deposited
prior to issuance of amended Environmental Clearance.
With the above directions, the Original Application No. 222 of F
2014 and Misc. Applications Nos. 596/2016 and 603/2016 are
finally disposed of while leaving the parties to bear their own costs.”
22. Appearing for the appellants in C.A. No.5016 of 2016, Shri
Mukul Rohatgi, learned senior counsel, has submitted that the State
Government in exercise of the power conferred under the Karnataka
G
Industrial Areas Development Act (for short ‘KIAD Act’) declared the
land in question as an industrial area. Thereafter, the land in question
has been acquired by the State Government in the year 2004. Following
the acquisition, on 28.06.2007, the land was allotted to the appellant by
the KIADB. The SEIAA granted environmental clearance which was
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1020 SUPREME COURT REPORTS [2019] 4 S.C.R.
A followed by public notice concerning clearance on 14.03.2012. Neither
the allotment of land nor the environmental clearance was challenged
before the Tribunal. Thus, none of the statutory decisions or processes,
are the cause of action for the purpose of the application. The averments
made in the original application does not satisfy or meet the requirements
of Section 14(1) and (3) of the NGT Act and the original application
B
does not spell out the cause of action relevant for the purpose of said
provision. Since the statutory processes and clearances could not have
been challenged for being hit by Section 14(3), the construction activities
which were the alleged cause of action could not have been challenged.
Therefore, the Tribunal ought to have held that the application was not
C maintainable.
23. Further the application is barred by limitation. Though
environmental clearance was granted on 17.02.2012 and it was published
in two leading newspapers on 12.03.2012 and 14.03.2012, modified plan
was approved by the KIADB on 30.08.2012, the application ought to
D have been filed within six months from the date on which cause of action
for the dispute first arose in terms of Section 14 of the NGT Act. The
present application has been filed in March, 2014 which was much beyond
the prescribed period of limitation. No application seeking condonation
of delay has been filed accompanying the application. Hence, the
Tribunal ought to have dismissed the application on the ground that as it
E is barred by time.
24. It was also argued that buffer zone laid down by the NGT is
substantially higher as compared to buffer zone which is required to be
maintained as per the Revised Master Plan, 2015 issued on 22.06.2007.
This is contrary to the Karnataka Town and Country Planning Act, 1961
F (for short ‘the Planning Act’).
25. Shri Neeraj Kishan Kaul and Shri R.Venkataramani, learned
senior counsel appearing for the appellants, in this case have also made
similar submissions. It was argued that the direction imposing penalty/
compensation is illegal on the ground that the applicants did not allege
G that the construction work of the project has caused environmental wrong.
No wrong or injury either to Bellandur lake water body or to Bellandur
lake area, has been alleged and established. As such, there is no question
of any enquiry relating to imposition of penalty or any compensation.
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1021
[S. ABDUL NAZEER, J.]
26. Shri Maninder Singh, learned senior counsel appearing for the A
appellants, in C.A. Nos.5016 and 10995 of 2016, while supporting the
submissions made by Shri Rohatgi, has submitted that the appellant has
obtained sanction and approvals for the project from the competent
authorities. It could not start construction despite grant of all the
permissions, including environmental clearance as early as possible i.e.
B
30.09.2013. Hence, imposing penalty/compensation is entirely
unsustainable.
27. Learned Advocate General, Shri Udaya Holla, appearing for
the appellant-State of Karnataka in C.A.Nos.4923-4924 of 2017, has
submitted that the State of Karnataka is also aggrieved by the order of
the NGT to the extent of setting aside the buffer zone in respect of C
water bodies and drains specified in the Revised Master Plan, 2015,
and enlargement of the buffer zone in respect of lakes and Rajakaluves.
It is also aggrieved by the order of the NGT directing the authorities to
demolish all the offending constructions raised/built in the buffer zone,
which will result in demolition of 95% of the buildings in Bengaluru. It is D
submitted that the Revised Master Plan is statutory in nature and NGT
has no power, competence or jurisdiction to consider the validity or vires
of any statutory provision/regulation. Therefore, the order of the NGT
to that extent is liable to be set aside.
28. Learned senior counsel appearing for the appellants in other E
cases, have also supported the arguments of the learned Advocate
General. It was contended that the Revised Master Plan provides for a
30 meters buffer zone around the lakes and a buffer zone of 50 meters,
25 meters and 15 meters from the primary, secondary and tertiary drains,
respectively to be measured from the centre of the drain. Vide the
impugned judgment, the NGT has revised these buffer zones and has F
directed that the buffer zone be maintained for 75 meters around the
lake and 50, 35 and 25 meters respectively from the primary, secondary
and tertiary drain, respectively. Variation of buffer zone, as directed by
the NGT is without any legal and scientific basis and has the effect of
amending the Revised Master Plan, 2015, without there being any G
challenge to the same or any relief sought with respect to the said Revised
Master Plan.
29. On the other hand, Shri Sajan Poovayya, learned senior counsel,
appearing for the applicants, has fairly submitted that the applications
H
1022 SUPREME COURT REPORTS [2019] 4 S.C.R.
A were filed only against the appellants in C.A Nos. 5016 of 2016 and
8002-8003 of 2016 (respondent Nos. 9 & 10). He has no objection to
set aside the order in so far as the appellants in other appeals including
the State of Karnataka are concerned. He has also no objection to set
aside the general conditions and directions of the NGT in paragraph (1)
of the order dated 04.05.2016 except the directions issued against
B
respondent Nos. 9 and 10. In view of the above, it is not necessary to
examine the contentions of the learned Advocate General in Civil Appeal
Nos. 4923-4924 of 2017. It is also not necessary to consider the
contentions urged in the other civil appeals except the appeals filed by
respondents Nos. 9 and 10.
C 30. Shri Poovayya has strongly opposed the submissions made by
the learned senior counsel appearing for the appellants in C.A. No. 5016
of 2016 and C.A. Nos. 8002-8003 of 2016. It is submitted that the
Tribunal is a specialized body for effective and expeditious disposal of
cases relating to environmental protection and conservation of forests
D and other natural resources including enforcement of any legal right
relating to environment. The jurisdiction of the Tribunal is provided under
Sections 14, 15 and 16 of the NGT Act. Section 14 provides for the
jurisdiction over all civil cases where a substantial question relating to
environment is involved. However, such question should arise out of
implementation of the enactments specified in Schedule I. The Tribunal
E has the jurisdiction under Section 15(1)(a) of the NGT Act to provide
relief and compensation to the victims of pollution and other environmental
damage arising under the enactments specified in Schedule I. Under
Sections 15(1)(b) and 15(1)(c), the Tribunal can provide for restitution
of property damaged and for restitution of the environment for such
F area or areas, as the Tribunal may think fit. Sections 15(1)(b) and 15(1)(c)
have not been made relatable to enactment specified in Schedule I of
the Act. Section 15(1)(c) is an entire island of power and jurisdiction
read with Section 21 of the Act. He submits that whenever ecology is
being compromised and jeopardized, the Tribunal can apply Section 20
for taking restorative measures in the interest of environment. The
G limitation provided in Section 14 is period of six months from the date on
which cause of action first arose whereas in Section 15 it is five years.
Therefore, the petition is not barred by time.
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1023
[S. ABDUL NAZEER, J.]
31. He has further submitted that the provisions of Section 33 A
shall have the effect notwithstanding anything inconsistent contained in
any other law for the time being in force. This gives the Tribunal overriding
powers over anything inconsistently contained in KIAD Act, Planning
Act, Revised Master Plan of Bangalore, 2015 and Karnataka Municipal
Corporation Act, 1976 (for short ‘KMC Act’). Therefore, the Tribunal
B
while providing for restoration of environment in an area can specify
buffer zone around specific lakes and water bodies in contravention
with zoning regulation.
32. Regarding limitation, he has submitted that the application filed
by respondents 1 to 3 was not an application simplicitor under Section 14
of the Act. It was an application where a specific prayer has been C
made with reference to Lake Development Authority’s report dated
12.06.2013 and the Ministry of Environment Forest and Climate Change
Monitoring Committee report dated 14.08.2013 for restoration of
ecologically sensitive land and for maintaining sensitive area in its natural
condition so that ecological balance of the area is not disturbed. Therefore, D
the petition was under Section 15 of the Act and it can be filed within
five years from the date on which the cause for such compensation or
relief first arose.
33. It was further submitted that right to appeal under Section 22
is not a vested right unless provided by statute. Exercise of Appellate E
Jurisdiction without the fulfillment of statutory mandate would be without
jurisdiction. Section 22 of the Act provides for an appeal on the ground
specified in Section 100 of the Code of Civil Procedure, 1908 (for short
‘the CPC’). Under Section 100 of the CPC, an appeal can be filed only
on the ground that the case involves a substantial question of law as may
be framed by the Appellate Court. In the instant case, the appeal does F
not involve any substantial question of law hence it has to be dismissed
in limine. He has taken us through various materials placed on record
in order to substantiate that the direction passed and penalty imposed by
the Tribunal upon to project proponents are sustainable. He prays for
dismissal of the appeals. G
34. We have carefully considered the submissions of the learned
counsel of the parties and perused the materials placed on record.
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1024 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 35. Before considering the other contentions of the learned counsel
for the parties, let us first consider the scope of enquiry in appeals filed
under Section 22, which is as under:
“22. Appeal to Supreme Court.- Any person aggrieved by any
award, decision or order of the tribunal, may, file an appeal to the
B Supreme Court, within ninety days from the date of communication
of the award, decision or order of the Tribunal, to him, on any one
or more of the grounds specified in section 100 of the Code of
Civil Procedure, 1908 (5 of 1908):
Provided that the Supreme Court may, entertain any appeal after
C the expiry of ninety days, if it is satisfied that the appellant was
prevented by sufficience cause from preferring the appeal.”
36. It is settled that there is no vested right of appeal unless the
statute so provides. Further, if a statute provides for a condition subject
to which the appropriate Appellate Court can exercise jurisdiction, the
D Court is under an obligation to satisfy itself whether the condition
prescribed is fulfilled. Exercise of appellate jurisdiction without the
fulfillment of statutory mandate would be without jurisdiction. Therefore,
the right of appeal provided under Section 22 is to be read subject to the
conditions provided therein.
E 37. Section 22 provides for an appeal to the Supreme Court on
the grounds specified in Section 100 of the CPC. Under Section 100
CPC, an appeal can be filed only on the ground that the case involves a
substantial question of law as may be framed by the Appellate Court.
The scope of appeal under Section 22, therefore, is restricted to substantial
question of law arising from the judgment of the Tribunal. The test to
F determine whether the question is substantial question of law or not was
laid down by a Constitution Bench of this Court in Sir Chunilal V. Mehta
and Sons, Ltd. v. Century Spinning and Manufacturing, 1962 Supp.
(3) SCR 549. This Court has laid down the test as under:
“The proper test for determining whether a question of law raised
G in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and substantially
affects the rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled by this Court
or by the Privy Council or by the Federal Court or is not free from
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1025
[S. ABDUL NAZEER, J.]
difficulty or calls for discussion of alternative views. If the question A
is settled by the highest court or the general principles to be applied
in determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question
of law.”
B
38. It is equally settled that merely because the remedy of appeal
is provided against the decision of the Tribunal on a substantial question
of law alone, that does not ipso facto permit the appellants to agitate
their appeal to seek re-appreciation of the factual matrix of the entire
matter. The appellants cannot seek to re-argue their entire case to seek
wholesale re-appreciation of evidence and the factual matrix that has C
been considered by the Tribunal is ex facie impermissible under Section
22. There cannot be fresh appreciation or re-appreciation of facts and
evidence in a statutory appeal under this provision.
39. The first question raised by the learned counsel is in relation
to the maintainability of the application before the Tribunal. D
40. The Tribunal has been established under a constitutional
mandate provided in Schedule VII List I Entry 13 of the Constitution of
India, to implement the decision taken at the United Nations Conference
on Environment and Development. The Tribunal is a specialized judicial
body for effective and expeditious disposal of cases relating to E
environmental protection and conservation of forests and other natural
resources including enforcement of any legal right relating to environment.
The right to healthy environment has been construed as a part of the
right to life under Article 21 by way of judicial pronouncements. Therefore,
the Tribunal has special jurisdiction for enforcement of environmental F
rights.
41. The jurisdiction of the Tribunal is provided under Sections 14,
15 and 16 of the Act. Section 14 provides the jurisdiction over all civil
cases where a substantial question relating to environment (including
enforcement of any legal right relating to environment) is involved. G
However, such question should arise out of implementation of the
enactments specified in Schedule I.
42. The Tribunal has also jurisdiction under Section 15(1)(a) of
the Act to provide relief and compensation to the victims of pollution and
H
1026 SUPREME COURT REPORTS [2019] 4 S.C.R.
A other environmental damage arising under the enactments specified in
Schedule I. Further, under Section 15(1)(b) and 15(1)(c) the Tribunal
can provide for restitution of property damaged and for restitution of the
environment for such area or areas as the Tribunal may think fit. It is
noteworthy that Section 15(1)(b) & (c) have not been made relatable to
Schedule I enactments of the Act. Rightly so, this grants a glimpse into
B
the wide range of powers that the Tribunal has been cloaked with respect
to restoration of the environment.
43. Section 15(1)(c) of the Act is an entire island of power and
jurisdiction read with Section 20 of the Act. The principles of sustainable
development, precautionary principle and polluter pays, propounded by
C this Court by way of multiple judicial pronouncements, have now been
embedded as a bedrock of environmental jurisprudence under the NGT
Act. Therefore, wherever the environment and ecology are being
compromised and jeopardized, the Tribunal can apply Section 20 for
taking restorative measures in the interest of the environment.
D 44. The NGT Act being a beneficial legislation, the power
bestowed upon the Tribunal would not be read narrowly. An interpretation
which furthers the interests of environment must be given a broader
reading. (See Kishsore Lal v. Chairman, Employees’ State
Insurance Corpn. (2007) 4 SCC 579, para 17). The existence of the
E Tribunal without its broad restorative powers under Section 15(1)(c)
read with Section 20 of the Act, would render it ineffective and toothless,
and shall betray the legislative intent in setting up a specialized Tribunal
specifically to address environmental concerns. The Tribunal, specially
constituted with Judicial Members as well as with Experts in the field of
environment, has a legal obligation to provide for preventive and
F restorative measures in the interest of the environment.
45. Section 15 of the Act provides power & jurisdiction,
independent of Section 14 thereof. Further, Section 14(3) juxtaposed
with Section 15(3) of the Act, are separate provisions for filing distinct
applications before the Tribunal with distinct periods of limitation, thereby
G amply demonstrating that jurisdiction of the Tribunal flows from these
Sections (i.e. Sections 14 and 15 of the Act) independently. The limitation
provided in Section 14 is a period of 6 months from the date on which
the cause of action first arose and whereas in Section 15 it is 5 years.
Therefore, the legislative intent is clear to keep Section 14 and 15 as self
H contained jurisdictions.
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1027
[S. ABDUL NAZEER, J.]
46. Further, Section 18 of the Act recognizes the right to file A
applications each under Sections 14 as well as 15. Therefore, it cannot
be argued that Section 14 provides jurisdiction to the Tribunal while
Section 15 merely supplements the same with powers. As stated supra.
the typical nature of the Tribunal, its breadth of powers as provided
under the statutory provisions of the Act as well as the Scheduled
B
enactments, cumulatively, leaves no manner of doubt that the only tenable
interpretation to these provisions would be to read the provisions broadly
in favour of cloaking the Tribunal with effective authority. An
interpretation that is in favour of conferring jurisdiction should be
preferred rather than one taking away jurisdiction.
47. Section 33 of the Act provides an overriding effect to the C
provisions of the Act over anything inconsistent contained in any other
law or in any instrument having effect by virtue of law other than this
Act. This gives the Tribunal overriding powers over anything inconsistent
contained in the KIAD Act, Planning Act, Karnataka Municipal
Corporations Act, 1976 (“KMC Act”); and the Revised Master Plan of D
Bengaluru, 2015 (“RMP”). A Central legislation enacted under Entry
13 of List I Schedule VII of the Constitution of India will have the
overriding effect over State legislations. The corollary is that the Tribunal
while providing for restoration of environment in an area, can specify
buffer zones around specific lakes & water bodies in contradiction with
zoning regulations under these statutes or the RMP. E
48. The second question raised by the appellants is that the petition
is barred by time. According to appellants, environmental clearance was
granted to the respondent No. 9 on 17.02.2012 for which notice was
published in the leading newspaper on 12.03.2012 and 14.03.2012.
Modified building plan was approved on 30.08.2012, which was followed F
up to 10.08.2014. Similar events had taken place in regard to the project
of respondent No. 10 who had been granted environmental clearance
on 30.09.2013. The application had to be filed within a period of six
months from the date on which cause of action for such dispute has first
arisen in terms of Section 14 of the NGT Act. Admittedly, the present G
application has been filed in March, 2014 and according to them, it is
much beyond the prescribed period of limitation. Also, there is no
application for condonation of delay accompanying the main application.
Therefore, the Tribunal will not have jurisdiction to condone the delay.
H
1028 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 49. The OA No. 222 of 2014 was not an application simpliciter
under Section 14 of the Act. It was an application where a specific
prayer has been made with reference to Lake Development Authority’s
(“LDA”) Report dated 12.06.2013 and the Ministry of Environment,
Forest and Climate Change (“MoEF”) Monitoring Committee Report
dated 14.08.2013 for restoration of ecologically sensitive land and for
B
maintaining the sensitive in its natural condition so that the ecological
balance of the area is not disturbed. It is clear from the documentary
evidence supported by data, that the project proponents have committed
breaches and the implementation of the project is bound to have serious
adverse impact on the ecology, hydrology and the environment in the
C catchment area of Bellandur Lake. The environmental degradation as
established from the documents would give rise to an independent cause
of action. Therefore, this was a petition under Section 15 of the Act and
thus it could be filed within 5 years from the date on which the cause for
such compensation or relief first arose.
D 50. In fact, in the original application before the Tribunal there
was no mention of the provision under which it was being filed. It is well
settled principle of law that non-mention of or erroneous mention of the
provision of law would not be of any relevance, if the Court had the
requisite jurisdiction to pass an order. It would be a mere irregularity and
would not vitiate the application or the judicial order of the Tribunal.
E
51. Shri R. Venkataramani, learned senior counsel, appearing for
the appellant in CA No.5016 of 2016 has submitted that the constructions
had not commenced before the grant of environment clearance. The
inspection report dated 11.01.2012 of the Chairman of the KSPCB
observes that “no construction” had commenced on the date of inspection.
F This report cannot be overlooked on the basis of some dumping of debris
which could not be attributed to the appellant. He has pointed out the
report of the Committee appointed by the Tribunal in the month of August
2015, wherein it was stated that “it started construction after obtaining
clearance”. In this regard he has also taken us through various documents
G placed on record and submits that there is absolutely no justification in
imposing monitoring penalty/compensation without assessment of impact.
52.. The Tribunal has pointed out on the basis of the Committee
report of August 2015, that the appellant had encroached 3 acres 10
guntas of Bellandur Lake and a boundary wall has been raised around
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1029
[S. ABDUL NAZEER, J.]
the said land. The Tribunal has also found that the project proponents A
have violated the Master Plan. They have not obtained the mandatory
clearance from the Sensitive Zone Committee constituted by the
Government of Karnataka. It is also clear from the materials on record
that there are several other violations by the project proponents. The
Tribunal has discussed all these issues from para 52 onwards. It is also
B
clear from the materials on record that there is a definite possibility of
environment, ecology, lakes, and wetland being adversely affected by
these projects. That is why, the Tribunal has observed as under:
“72. In light of the above scope of the project and records before
the Tribunal and the defaults on the part of the Project Proponents,
the cumulative adverse effects of the activities undertaken by the C
respondents before us can be summed up as under:
1) The construction of both the projects had started prior to the
grant to Environmental Clearance.
2) The EIA Notification of 2006 requires that without grant of D
Environmental Clearance, no project can commence its activity.
This restriction applies not only to operationalization of the project
but even for the purposes of establishment.
3) Revenue Map images shows multiple Rajakaluves flowing
through the project(s) in question. The images further show E
encroachment on Rajakaluves.
4) Digital images of the land available on Google satellite images
showing encroachment on two major Rajakaluves.
5) Google Satellite images retrieved from Google archives clearly
reflect two distinct features. Firstly, change in the wetland area F
between the period of 13th November, 2000 and 23rd November,
2010. Secondly, it reveals the excavation work carried out by
Respondent Nos. 9 and 10 commenced prior to obtaining
Environmental Clearance.
6) Restriction in regard to extraction of ground water was not G
strictly complied with as permission of Central Ground Water
Authority was not obtained before construction.
7) The conditions with regard to the natural slopping pattern of
the project site to remain unaltered and natural hydrology of the
H
1030 SUPREME COURT REPORTS [2019] 4 S.C.R.
A area to be maintained as it is, to ensure natural flow of storm
water as well as in relation to Lakes and other water bodies within
and/or at the vicinity of the project area to be protected and
conserved: The inspection report by the MoEF clearly notes that
condition nos. (xxxix) and (xl) in the Environmental Clearance of
respondent no. 9 cannot be complied with as it will necessarily
B
result in some alteration of the natural slopping pattern of the
project site and the natural hydrology of the area. It noted that the
project area is located in the catchment area of the Bellandur
Lake and the project authorities have informed that they will take
all precautionary measures to ensure that the lake will not be
C affected by project activities either during construction or operation
phase.”
53. In paragraph 81, the Tribunal has observed as under:
“81.…………Another very important aspect which cannot be
overlooked by the Tribunal is with regard to the respondent nos. 9
D & 10 carrying on their project activity fully knowing that they
were incapable of or it was not possible for them to comply with
condition no. xxxix and xl (or alike conditions) in the order granting
the Environmental Clearance. This has even been noticed by the
MoEF in its monitoring report dated 14th August, 2013. These
E respondents never applied for variation or amendment of these
conditions and continued with their construction activities. This
renders these respondents entirely liable for environmental and
ecological damage and the restoration and restitution thereof.”
54. In our view, the findings arrived at by the Tribunal are not only
F based on the documents that were available on record but also on the
pleadings that were made by the parties buttressed by the Committee’s
report and the inspection note of the Expert Members. Therefore, the
directions passed and the penalty imposed by the Tribunal on both project
proponents are valid and sustainable and do not suffer from any perversity.
G 55. We are also of the view that it is impermissible for the appellants
to seek a factual review through the methodology of re-appreciation of
factual matrix by this Court under Section 22 of the NGT Act.
56. Shri R.Venkataramani, learned senior counsel has also raised
a subsidiary issue relating to res judicata. According to him, respondent
H
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1031
[S. ABDUL NAZEER, J.]
Nos. 12 and 13 filed Writ Petition Nos.3656-57/2013 seeking similar A
reliefs in a representative capacity. The issues raised therein are same
as those canvassed in the application before the Tribunal. The reliefs
sought for are essentially the same. Hence, the applications are barred
by the principle of res judicata.
57. The Tribunal has answered this issue in paragraphs 47 to 51 B
of the order. There was no dispute in so far as filing of the writ petitions
is concerned. However, the parties are not common nor the issues in
application and the writ petitions are directly and substantially the same.
After examination of the pleadings, the Tribunal has recorded a finding
of fact that there is no commonality of a cause of action or likelihood of
a conflict between the judgments. The prayers and the geneses of the C
respective proceedings are entirely distinct and different in their scope
and relief. The issues before the Tribunal would essentially relate to
environment ecology and its restoration while the proceedings before
the High Court relate to entirely different issues with acquisition of land,
its allotment and transfer to the third party. These issues in both the D
proceedings are neither substantial nor materially identical.
58. After elaborately considering this question, the Tribunal has
concluded as under:
“51.….For these reasons, we find no merit in this contention of
respondent Nos. 9 and 10. The purpose of the doctrine of res E
judicata is to provide finality and conclusiveness to the judicial
decisions as well as to avoid multiplicity of litigation. In the present
case, the question of re-agitating the issues or agitating similar
issues in two different proceedings does not arise. The ambit and
scope of jurisdiction is clearly decipherable. The jurisdictions of F
the Hon’ble High Court of Karnataka and this Tribunal are
operating in distinct fields and have no commonality in so far as
the issues which are raised directly and substantially in these
petitions, as well as the reliefs that have been prayed for before
the Hon’ble High Court and the Tribunal are concerned. There is
no commonality in parties before the Tribunal and the High Court. G
The ‘cause of action’ in both proceedings is different and distinct.
The matters substantially and materially in issue in one proceedings
are not the same in the other proceeding. There is hardly any
likelihood of conflicting judgments being pronounced by the Tribunal
H
1032 SUPREME COURT REPORTS [2019] 4 S.C.R.
A on the one hand and the High Court on the other. Therefore, we
are of the considered view that the present applications are neither
hit by the principles of res judicata nor constructive res judicata.
We also hold that culmination of proceedings before the Tribunal
into a final judgment would not offend the principle of ‘judicial
propriety’, because of the Writ Petitions pending before the
B
Hon’ble High Court of Karnataka.”
59. We do not find any error in the aforesaid conclusion of the
Tribunal. We are of the view that the Tribunal was justified in holding
that the objections taken by the respondent Nos. 9 and 10 do not satisfy
the basic ingredients to attract the application of res judicata or
C constructive res judicata.
60. The State of Karnataka is aggrieved by the following offending
portion of the order dated 04.05.2016:
“1. In view of our discussion in the main Judgment, we are of the
D considered view that the fixation of distance from water bodies
(lakes and Rajkalewas) suffers from the inbuilt contradiction, legal
infirmity and is without any scientific justification. The RMP –
2015 provides 50m from middle of the Rajkalewas as buffer zone
in the case of primary Rajkalewas, 25m in the case of secondary
Rajkulewas and 15m in the tertiary Rajkulewas in contradiction
E to the 30m in the case of lake which is certainly much bigger
water body and its utility as a water body/wetland is well known
certainly part of wet land. Thus, we direct that the distance in the
case of Respondents Nos. 9 and 10 from Rajkulewas, Waterbodies
and wetlands shall be maintained as below:-
F (i) In the case of Lakes, 75m from the periphery of water
body to be maintained as green belt and buffer zone for all the
existing water bodies i.e. lakes/wetlands.
(ii) 50m from the edge of the primary Rajkulewas.
(iii) 35m from the edges in the case of secondary Rajkulewas
G
(iv) 25m from the edges in the case of tertiary Rajkulewas
This buffer/green zone would be treated as no construction zone
for all intent and purposes. This is absolutely essential for the purposes
of sustainable development particularly keeping in mind the ecology and
H environment of the areas in question.
MANTRI TECHZONE PVT. LTD. v. FORWARD FOUNDATION 1033
[S. ABDUL NAZEER, J.]
All the offending constructions raised by Respondents Nos. 9 and A
10 of any kind including boundary wall shall be demolished which falls
within such areas. Wherever necessary dredging operations are required,
the same should be carried out to restore the original capacity of the
water spread area and/or wetlands. Not only the existing construction
would be removed but also none of these Respondents - Project Proponent
B
would be permitted to raise any construction in this zone.
All authorities particularly Lake development Authority shall carry
out this operation in respect of all the water bodies/ lakes of Bangalore.”
61. We have already noticed that Shri Poovayya has no objection
to set aside the aforesaid impugned portion of the order in so far as the C
appellants in all the appeals except the appeals filed by respondent Nos.9
and 10. The aforesaid portion of the order contains not only general
directions but also certain directions against respondent Nos. 9 and 10.
Therefore, only that portion of the order which does not pertain to
respondent Nos. 9 and 10 needs to be quashed.
D
62. In the light of the above discussion, we pass the following
order:
i) Civil Appeal No. 5016 of 2016 and Civil Appeal Nos. 8002-8003
of 2016 filed by the appellants/respondent nos. 9 and 10 are
hereby dismissed. The impugned judgment and order in so far E
as appellants/respondent Nos. 9 and 10 are concerned is
sustained.
ii) All the other appeals are hereby allowed and the direction/
condition No. (1) in the order dated 4.5.2016 is hereby set aside
except the direction issued against respondent Nos. 9 and 10. F
63. There will be no order as to costs.
Ankit Gyan Appeals disposed of.
G
H
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